Friday, July 1, 2016

We really like to celebrate democracy
in this country. This weekend expect fireworks, barbeques, and rodeos commemorating
our break from England. We abhorred being a colony, a backwater place far from
the center of politics and culture where we had no say in Parliament in London.
And so—exactly two-hundred and forty years ago on Monday—our self-proclaimed
representatives got together in Philadelphia and declared our very own Brexit
from Britain.

A lot has changed. Our country has
developed its own history, accents, sports, culture, and, of course, government
and courts. This week the Supreme Court wrapped up its term for the year. Unfortunately,
it declined to review a case that a lot of us in the Pacific had our eyes on.

The case raised troubling questions and went to the
heart of what it means to be an American; more specifically, an
American-Samoan.

Let me explain. Over a century ago, we were at war
against and defeated Spain. Unlike European powers that unabashedly controlled
territories around the globe, we Americans liked to imagine of ourselves cut
from a different cloth. We broke free from colonial oppressors and started a
new country. The thought of having a colony of our own was incongruent with our
democratic tradition.

And yet, we had just conquered a European country with a
very old and expansive empire that once contained most of central and South
America, the Caribbean, and a scattering of islands spread over the Pacific. Through
treaty negotiations, we acquired some of their old holdings in Cuba, Puerto
Rico, and the Pacific, which included the Philippines and Guam.

This was part of a grander plan. In addition to the old
Spanish holdings, the United States encouraged the overthrow of the Hawaiian
kingdom and in 1899 acquired from the Germans what we now call American Samoa.

These acquisitions sparked a national debate. Was this
the end of our democracy? Massachusetts Senator George Frisbie Hoar eloquently
pointed out in the Senate chamber that the United States had no business
running colonies: “Now, I claim that under the Declaration of Independence you
cannot govern a foreign territory; a foreign people, another people than your
own; that you cannot subjugate them and govern them against their will, because
you think it is for their good, when they do not; because you think you are
going to give them the blessings of liberty.”

But Senator Hoar was in the minority.
Another Senator summarized the position of most of his colleagues with this: “Providence
has given the United States the duty of extending Christian civilization. We
come as ministering angels, not despots.”

So much for anti-imperialism. But whatever
happened to those acquisitions and the people living there? That’s where Lene
Tuaua comes into play. Tuaua was born in American Samoa and later moved to
California, where he was educated and served as a corrections officer. Tuaua
and others served in the United States military. Many saw action in Vietnam and
other conflicts. But they’re not citizens of the United States. They are what
Congress calls “non-citizen nationals” and their rights and privileges don’t
flow from the constitution. They’re a creature of congressional legislation.

This should sound familiar for most
students of Hawaiian history. It is not unlike the ambiguous and unclear
standing locals had during the long territorial period for Hawaii. Except this
is the twenty-first century.

Tuaua and a few others, including a
Hawaii resident, brought a lawsuit challenging the power of Congress to define
their non-citizenship. They argued that the Constitution’s Fourteenth Amendment
makes it clear that everyone born in the United States “and subject to the
jurisdiction thereof, are citizens of the United States.” This would include
American Samoa.

Not so. What stood in the way of their
interpretation is a series of cases decided by the high court during the old
debate over colonies. These cases—appropriately named the Insular Cases—carved
out an ambiguity for territories that weren’t quite States, but not free from
the United States either. In other words, the Court provided the Constitutional
cover for imperialism to happen.

The rationale for the Insular Cases is
not surprising. In one opinion, the Supreme Court noted that far-flung lands
“inhabited by alien races, differing from us in religion, customs, laws,
methods of taxation, and modes of thought” may make the administration of
government and justice “according to Anglo-Saxon principles” impossible.
(Hawaii would later prove that wrong when it became a State in 1959).

Tuaua and the others figured it was time
to depart from this line of cases. Perhaps the strangest turn came when the
Obama Administration opposed the plaintiffs and urged courts to uphold Congressional
power. The case made its way to federal appeals court and it looked like the
Supreme Court of the United States was going to take it up and hear the case.
Hopes were riding high, but were dashed last month when the Court refused to
review it.

Congress prevailed and Tuaua and the
others are still “non-citizen nationals.” It’s too bad. A rejection of colonial
and territorial status would have righted the ship and affirmed our disdain for
colonies—just like the first generations of Americans centuries ago. It would
have made Independence Day a bit brighter this year.